In 2011, this lawsuit against Initiative 1 was filed by 34 bipartisan plaintiffs. They argued that the initiative was unconstitutional under a republican form of government, referring to the Guarantee Clause of the federal constitution.[1] They made five claims to back up their assertion that TABOR “is unconstitutional because it deprives the state and its citizens of effective representative democracy, contrary to a Republican Form of Government as required under both the United States and Colorado Constitutions”: the Guarantee Clause claim, the Enabling Act claim, the Supremacy Clause claim, the Equal Protection claim and the Impermissible Amendment claim.[2]

In 2012, Colorado District CourtJudge William J. Martínez ruled in favor of all but the Equal Protection claim which allowed the other arguments to move forward in the case. However, Martínez’s ruling noted the history of seeing the Guarantee Clause as not justiciable or capable of judicial resolution, and said, “the Court determines that it cannot summarily conclude that Plaintiffs’ Guarantee Clause claim is per se non-justiciable.”[2]

The defense appealed the decision to the 10th Circuit Court of Appeals. In March 2014, the court ruled that the case was justiciable.[3] The court further denied a petition for rehearing en banc in July 2014. Some consider the case likely to reach the U.S. Supreme Court.[4]

Kerr v. Hickenlooper is a lawsuit in federal district court in Colorado. The Plaintiffs (current and past Colorado state legislators, public officials, educators, administrators and private citizens) have sued to overturn the Taxpayer Bill of Rights (“TABOR”). TABOR is an amendment to the Colorado Constitution passed by the voters in 1992. Among its many provisions, TABOR removed from the legislature (and all other levels of state government) the power to enact tax legislation; instead, it requires a plebiscite to approve any new tax measures. This key area of public policy is put off limits to the normal functions of representative institutions — proposals, hearings about impacts, consideration of other interests and alternatives, deliberation, and compromise. In eliminating an essential fiscal power of the Colorado General Assembly, the Plaintiffs claim that TABOR has fundamentally undermined the ability of Colorado’s representative democracy to function and that, as a result, the state no longer has a “republican form of government.” A republican form of government is, however, guaranteed to all states under the Guarantee Clause (Article IV, section 4) of the United States Constitution and also is required to be maintained in the Colorado State Constitution by federal statute (the Colorado Statehood Act of 1875). TABOR thus violates Article IV, section 4, and the requirements of the Statehood Act, and should be invalidated by the court.

Supreme Court sends TABOR lawsuit back to appeals court

Arizona redistricting case to play role

WASHINGTON — A years-long battle over a Colorado tax law went into another period of overtime on Tuesday when the U.S. Supreme Court sent the fight back to a lower court.

In the short-term, the decision means Colorado’s Taxpayer’s Bill of Rights, or TABOR, is in little danger of going away.

But the law’s long-term prospects are less clear, as is its strict requirement that Colorado officials get permission from state voters whenever they want to raise taxes.

The Supreme Court “sort of kicked the can down the road” when it returned the case to the 10th U.S. Circuit Court of Appeals in Denver, said Ilya Shapiro of the Cato Institute, one of several outside groups that filed briefs last year in support of TABOR.

Opponents for years have tried to dismantle TABOR, arguing that the law unconstitutionally takes away taxing authority from the state legislature and local governments.

Led by state Sen. Andy Kerr and House Speaker Dickey Lee Hullinghorst, they filed suit in 2011.

But other Colorado officials, including Gov. John Hickenlooper, have tried to get the case dismissed by arguing — among other things — that TABOR’s opponents in the legislature do not have the right to take their fight to court.

The 10th Circuit sided last year with the TABOR opponents. In response, Colorado officials asked the Supreme Court to give its opinion on whether the case had standing.

It vacated the decision by the 10th Circuit and asked the lower court to re-examine the TABOR case “for further consideration in light” of a ruling Monday by the Supreme Court in a related Arizona case.

Notably, the justices in that case, which dealt with redistricting, found the Arizona legislature had standing to bring a lawsuit. TABOR opponents took that as a good sign their case ultimately would not be dismissed.

“It isn’t a black-and-white win, but it is encouraging from our perspective,” said Michael Feeley, one member of a team of attorneys representing the TABOR opponents.

“We are in double (or) triple overtime right now,” he added.

But TABOR supporters said the Colorado and Arizona cases are separated by key differences. For example, the TABOR challenge includes only a handful of state legislators — as opposed to the full power of the legislature in Arizona.

That could make a difference when it comes to standing. Indeed, state Attorney General Cynthia Coffman put more stock in the fact the Supreme Court vacated the 2014 decision by the 10th Circuit.

“We are grateful that the Supreme Court recognized the problems with the 10th Circuit’s ruling,” said Coffman in a statement.

“As we’ve said all along, we believe this case to be without merit, and we look forward to once again defending TABOR. We will continue to defend our citizens’ right to have a voice in state tax policy,” she added.

Another outstanding issue in the TABOR case is the unusual question of whether the U.S. court system is within its rights to rule on a key argument that’s been levied by TABOR opponents.

Namely, whether TABOR’s requirement to put tax hikes before voters violates the constitution by transforming Colorado from a republican form of government into a direct democracy.

The court historically has been reluctant to wade into these kinds of debates, but a footnote in the Arizona case seemed split on the idea.

It’s one reason why Shapiro of the Cato Institute said he didn’t expect resolution to the TABOR case anytime soon.

No matter what the 10th Circuit decides next, another appeal to the Supreme Court is almost certain to follow. And that probably won’t get there until the fall of 2016, he added.